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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No. HAC 322 of 2012
STATE
V
ILIKIMI NAITINI
PAILATO CAVASIGA
Counsel: Mr. T. Qalinauci with Mr. M. Vosawale for the State
Ms. N. Nawasaitoga (L.A.C.) for the first accused
Mr. S. Waqainabete (L.A.C.) for the second accused
Dates of hearing: 3,4,5,6 November 2014
Date of Summing Up: 7 November 2014
SUMMING UP
Ladies and Gentleman:
The time has now come for me to sum up the evidence in this case and to direct you on the law. When I do so, you must accept what I say about the law and apply it to the facts. The law in this case is rather complex and so I will try to break it down into manageable parts for you.
2. You are the Judges of the facts and whatever you say about the facts is paramount and I must give your opinions the greatest amount of weight when I come to consider the final judgment of the Court. If in the summing up I express an opinion on the facts and I do, then you can reject my opinions unless you agree with me and come to your own opinions. I have no right to usurp your view of the facts. On assessing the evidence of witnesses, you may accept all of what a witness says, you may reject all or you may reject or accept part of the evidence.
3. It is for you to tell me what you believe the facts of this case are by applying the law as I direct you and then by telling me if in your opinion if each of these accused is guilty or not guilty of murder and any other alternative crime that I leave with you.
4. Of course you are aware that there are two persons in the dock charged with the same crime. You will look at each accused separately because the evidence in respect of each is different. Just because you may think that one accused is guilty, it does not mean that the other is.
5. You will judge this case solely on the evidence that has been heard or seen in this Courtroom. Evidence consists of oral evidence from the witness box, agreed facts put before you, documentary evidence such as the records of interview, and photographs if you think they assist you. All of that is evidence and you must consider it all.
6. You will not judge this case on anything that you have heard or seen outside of the Courtroom – that would not be fair to the two accused persons.
7. Similarly you will not let any sympathy or prejudice play a part in your deliberations. You cannot judge the case solely on the violence that seems to have pervaded this community: you must look at the evidence dispassionately and with the wisdom of your experience of the community and the Fijian lifestyle.
8. I make no apologies for repeating to you what I said at the beginning, because it is important. That is that you can only find each of these accused guilty if you have been made sure by the State prosecutors that each is guilty – that is you are certain beyond reasonable doubt. Reasonable doubt is not any little niggling doubt – your doubt must be reasonable and if it is, then it is your duty to return an opinion of not guilty. Neither of the accused has to prove anything. The burden is on the State to make you sure of the guilt of the accused, no matter what they say in evidence.
9. Each of these accused has been charged with murder. I am sure that you all know what murder is – that is the unlawful taking of another's life, but in our law there is a little more to it than that, and when there are two people charged with one murder there is quite a lot for you to consider.
10. Murder is proved when it is shown to you so that you are sure that the person accused did something that caused the death of another person and the accused person intended to cause or was reckless as to causing the death of that person. I am afraid that we have to move on from that basic definition but before we do let us examine that very basic definition in terms of our case.
11. By looking at the first accused alone, he has admitted that he hit Tevita with the pine post in the course of the fight. The Doctor has said that Tevita died from injuries caused to the brain from the impact of a blunt object. Therefore you might have no difficulty in finding that Ilikimi engaged in conduct that caused Tevita's death and Counsel for Ilikimi herself admits that on behalf of her client. You must then decide if he intended to kill him or alternatively if he was reckless in using such a heavy post to hit him. A person is reckless if he is aware that there would be a substantial risk of death resulting from the use of such a heavy post, and that he was not justified in taking such a risk. So that is the first step you should take and it relates to the first accused only. If you think he intended to kill Tevita or was reckless in taking the risk that death might occur then you will find him guilty and put his case to one side before considering the case against the second accused in the manner in which I am going to direct you.
12. Before you consider the case against the second accused however, there are two further matters to consider for the first accused.
13. The first accused has said in his evidence that Tevita had punched him first and was out of control and he was only acting in self defence to protect himself and his "partner" the second accused from injury. If you think that Ilikimi was or may have been acting in self defence then he is entitled to be found not guilty. Because the prosecution must prove Ilikimi's guilt, it is for the prosecution to prove that he was not acting in self defence, not for Ilikimi to establish that he was; and you must consider the matter of self defence in the light of the situation which Ilikimi honestly believed he faced.
14. You must ask yourselves whether Ilikimi honestly believed that it was necessary to use force to defend himself at all. This would not be the case if Ilikimi was the aggressor or if you thought he was acting in revenge for the assault earlier on Pailato's brother. If you are sure that Ilikimi did not honestly believe that it was necessary to use force to defend himself, he cannot have been acting in lawful self-defence and you need to consider this matter no further. But what if you think that Ilikimi did honestly believe or may honestly have believed that it was necessary to use force to defend himself?
15. You must then decide whether the type and amount of force Ilikimi used was reasonable. Obviously a person who is under attack may react on the spur of the moment and use whatever might be at hand and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand, if he goes over the top and uses force out of all proportion to the attack on him or more force than is really necessary to defend himself, the force used would not be reasonable. So you must take into account both the nature of the attack on Ilikimi and what he did in response. Was it reasonable to control a very drunk man by hitting him over the head with a very heavy wooden post? Did he need to go that far to defend himself from drunken punches?.
16. If you are sure that the force Ilikimi used was unreasonable then Ilikimi cannot have been acting in lawful self defence; but if you think that the force Ilikimi used was or may have been reasonable you will find him not guilty.
17. The last thing I need to direct you on, in respect of the first accused is the alternative verdict of manslaughter.
18. If after considering Ilikimi's intentions in hitting Tevita with the post, you decide that he had no intention to kill and was not reckless in being aware of the substantial risk of death by doing so and if you reject the claimed defence of self-defence then you must re-examine Ilikimi's intentions at the time. We can never know what was going through his mind at the time, but if in the circumstances shown to exist by the evidence, you think that by hitting Tevita with the heavy post he was only intending to cause him very serious harm and not death, or he was reckless in that he knew that by doing so there was a real risk that he would cause him very serious harm and not death, and that he was unjustified in doing so, then it is open to you to find him guilty of the alternative crime of manslaughter.
19. That is all I wish to say at this stage about the first accused.
In summary then you will find him guilty of murder if you are sure that by hitting him over the head with the heavy post and that
by doing that he caused his death he intended to kill him or was reckless as to the substantial risk of death. If however you find
that he was acting in lawful self defence then you will find him not guilty. If you think he had no intention to kill nor was he
reckless as to the risk of death by his actions but he was only intending to cause very serious harm to Ilikimi or was reckless as
to the serious harm he might cause by his actions then you will find him not guilty of murder but guilty of the alternative offence
of manslaughter.
20 I turn now to the second accused. His situation in law is a lot more complex because he is what is regarded as a "secondary party" and his culpability depends to some degree on whatever you decide about the first accused. You are to judge the second accused in accordance with what you find to be his role in this fight with Ilikimi. Was he joining in with the first accused to harm Tevita? Or was he merely stepping in as he says to stop the fight between the other two?
21. In law a person acting in an agreed joint attack on another is equally liable as his co-accused in that attack, even if he does no part in inflicting the killer blow. Let me break down that principle of law for you.
22. The Prosecution's case is that both Ilikimi and Pailato committed this offence together. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are in it together as part of a joint plan or agreement to commit it, they are each guilty. Agreement or plan does not need to be a formal pre-decided pact. It can arise on the spur of the moment and nothing need to be said at all. An agreement can be inferred from the behavior of the parties. You may wish to take into account the two records of interview that are before you. Both accused have referred to the deceased's part he played in a group attack on the 2nd accused's brother Naiteqe and the grudge that they held against Tevita for that. So you might ask yourselves did they "have it in" for Tevita? Were they waiting for an opportunity to get back at him? Was the fight that night their opportunity for revenge?
23. The essence of joint responsibility for a criminal offence is that each accused shared the intention to commit the offence and took some part in it however great or small so as to achieve that aim.
24. Your approach to the case of Pailato should therefore be as follows: if you are sure that with the intention I have mentioned he took some part in committing the murder or manslaughter with Ilikimi, then he is guilty. Every person who willingly joins in a plan to commit an illegal act is responsible for whatever happens as a result of that act.
25. Mere presence at the scene of a crime is not enough to prove guilt but if you find that Pailato was on the scene and was there intending to assist the first accused and did encourage and assist the first accused in the offence then he is equally guilty.
26. Pailato says in his interview and in his evidence that he knew nothing about the attack on Tevita by the pine post. However if you find that Pailato was a willing party in the assault on Tevita then that doesn't matter because the law says that when two or more persons join together for an illegal purpose and in the course of that illegal purpose an offence is committed which is a probable consequence of that purpose then each is deemed to have committed the offence.
27. Now, I appreciate that that sounds terribly legalistic so let me try to explain it for you in simpler terms.
28. If you find that both Ilikimi and Pailato were in agreement to beat up Tevita, for whatever reason, and in the course of that hiding it was foreseeable that one of them could do something that would result in Tevita's death, then they are both liable for that death by a finding of either murder or manslaughter.
29. Your approach to the second accused should be therefore:
30. I now turn to the evidence to remind you of what I consider to be the most important points. Again I remind you that whatever I say about the evidence is for you to ignore if you wish. If I stress something as important, you might think it is not. If I don't mention something which you think is important you will give it the weight that you think fit. Remember you are the masters of the facts, not me.
31. We heard from some Police witnesses who attended at the scene and who conducted the interviews with the two accused. The records of the interviews are before you and they are important for reasons I will discuss with you shortly.
32. Mrs Theresa Yee Singh was an important eye witness to the incident on the night of the 5th August 2012. She was in her kitchen drinking grog with her sister
Karalaini that night when Karalaini's husband came outside knocking to come in. Karalaini didn't open the door because he was drunk
and she feared he might be violent and she told him to go away until he was sober. He then came to the window pleading to come in,
and then she saw the first accused pulling him way from the window. She saw that Tevita wanted to fight the 1st accused but he was
very drunk and they both ended up in the flower bed. The 1st accused then assaulted Te until he fell when he continued the assault.
It was while Tevita was on the ground that the 1st accused got a pine post and hit Te with it on the head. She wasn't sure if it
was the front or the back. The 1st accused then left and went to his house to get his phone and shoes. She also saw a second person
come and throw a few punches on Tevita before a Policeman came to stop the fight. This second man whom she identified as the 2nd
accused threw 5 punches on Tevita's ribs. He did this after Tevita had already been hit with the pine post. The two women went outside
and saw bleeding from Te's ears. The second person was punching him until the Policeman came; for maybe about 30 minutes.
The Police came and took Tevita to the hospital.
33. In cross-examination by Mr. Waqainabete, she disagreed that the second accused came out to stop the fight; she said that he was also assaulting Tevita. Nor did she see any elbowing
34. Mrs Karalaini Muavou was another important witness for the prosecution. She said that she was the wife of the deceased. She and her husband had come to Nanuku Settlement that night to spend time with Karalaini's sister. When she was drinking grog with her sister at about 11pm, Tevita came back drunk and she told him to go to his cousin's place to sleep it off. She was speaking to him at the window when she saw the first accused pulling his T-shirt. Tevita fell down but stood up again and they were punching each other. A second man came whom she identifies as the second accused and he took Tevita's hand or hands and put them behind his back and he punched him on the back and on the back of his neck. After that the first accused went to get the pine post and hit Tevita's head with it. He hit him once on the head with it. After that he ran back to the house he had come from and the 2nd accused too went inside the house. She saw blood coming out of Tevita's ears. She never saw Tevita hit the 2nd accused because he was holding Tevita's hands behind his back. When they had gone into the house Karalaini went and asked the second accused why he did it; she was crying and the 2nd accused apologized
35. In cross-examination she denied seeing Tevita elbowing the second accused and she denied that the 2nd accused left after throwing two punches. She said a lot of people were watching that night but Atelina Tinai was not one of them.
36. Ladies and Gentleman; they were the two eye witnesses called by the Prosecution and of course as you will appreciate they are crucial witnesses for the State. You will examine their evidence with care.
37. The Pathologist came to explain to us the post mortem report even though the details had been admitted as agreed facts. He said that on examination of Tevita's body he found that the skull had been fractured on the mid line of the occipital bone. The brain was damaged with extensive haemorrhage. He found that this haemorrhage to be the antecedent cause leading to the cause of death which was subdural haemorrhage. He told us that the skull and brain damage would have been caused by the extensive force of a blunt object and he identified the pine post as an object that could well have caused the damage.
38. I now wish to speak to you about the records of interview that are before you – one for each of the accused. Now these have been produced by consent from their respective counsel. There are no complaints about them and it certainly has not been suggested that the answers are not true. You can therefore accept the answers in the interviews as true and correct and are answers voluntarily given be each of the two accuses. They are evidence for you to accept or reject in the normal way.
39. You will have seen that the first accused said that when he went to the toilet, Atelina told him the way to go and she said that Tevita was lying there near the shed. He said he knew Tevita because he had assaulted Naiteqe, Pailato's elder brother. He heard Tevita calling his wife but she chased him away. He said he went to him and pulled him away from the window. Tevita was drunk and punched him. Pailato came to stop the fight. He said "I was really pissed off for what he had done to Pailato's elder brother Naiteqe as they had injured him and ended up being admitted to hospital". When asked if he had been waiting for Tevita before that day he answered "yes". Pailato joined in, pulling Tevita backwards and exchanging punches with Tevita. He said he was still angry so picked up a post and hit his head. When asked where Pailato was when he did this he said that he told Pailato to move away and he struck it on Tevita. He later said in the interview that he was really wild about the assault on Naiteqe and because of that he hit him with the post but he didn't expect that it would kill him. He later said (Q64) that when a Policeman came and asked him why he had done it, he replied "he has reaped the fruits of his actions". He did say a couple of times that he did not mean to kill him but you will note that nowhere in that interview did he tell the Police that he was acting in self defence to save himself and his partner from injury.
40. You will make what you will of that interview Ladies and Gentleman.
41. The second accused says in his interview that he punched Tevita twice on the chest because Atelina had asked him to go to stop the fight. Tevita was drunk but Ilikimi was sober. He did admit however that he punched Tevita on the face while Ilikimi was holding Tevita (Q34). He didn't see Ilikimi use the pine post on Tevita and when he punched him he had no intention of killing him.
42. I must direct you as a matter of law that what anybody says in an interview outside of Court is only evidence against that person alone and whatever the person says in his interview about anybody else is not evidence against that person
43. At the beginning of the Defence case you heard me tell each accused what their rights are in defence. They could remain silent and say that the State had not proved their case beyond reasonable doubt, or they could give evidence under oath. In either case they were entitled to call witnesses.
44. The first accused elected to give evidence. He said that at 11pm on the 5th August his cousin in Nanuku Settlement had called him and asked him to visit. He went there and drank tea with them. He asked the way to the bathroom - it was outside – and when he was there he heard shouting, getting louder and louder. He came out of the bathroom and saw Tevita shouting at the window. He called out to him and told him to be quiet because people were sleeping. He saw two ladies inside chasing him away. He knew that if he didn't take him away he might do harm to the ladies and break the window. He kept telling Tevita to go but he wouldn't. Tevita swore at him so he pulled him away from the window. Tevita punched him and he knew that if he didn't retaliate he would injure him and after that they had a fist fight. They were punching each other when the second man came to stop the fight. Tevita had a fist fight with the second man. Both of them couldn't control him and they feared that Tevita would injure both of them. The 1st accused then said "I told my partner to move away and I then used the pine post on him. Just one strike and he fell down".
You might find that that is a very telling piece of evidence against the second accused. He said the same thing in his caution interview but the rules of evidence say that it is not evidence against the second accused when in an interview but having repeated it in the witness box, it is certainly admissible evidence. You might find it telling that the first accused refers to the second accused as his "partner" and he told him to stand aside when he struck Tevita with the post. However Ladies and Gentleman it is entirely a matter for you whether you give that weight or not.
45. The first accused then went on to say that he didn't hit him with the intention to make him die – his intention was to defend himself. When the Police came they asked him why he did this and he told him that it was because of his behavior; that he was a violent person and a member of a group who beat people up.
46. The second accused also elected to give evidence. At 11pm on the 5th August, he was in Nanuku settlement at his cousin's house having tea. His cousin Atelina came in shouting for his help to come and stop a fight outside between Ilikimi and Tevita. Pailato ran outside. He saw that Tevita had his back to him so he pulled him by the pants to move him backwards to try to stop the fight. In the process, Tevita elbowed him in the chest making him move back. He felt pain and because of the pain he punched him twice in the chest. After that he turned to see Ilikimi. He was looking at him and he heard something fall on the ground. When he looked he saw the post on the ground. He looked at Ilikimi and then went inside.
47. Atelina Tinai gave evidence for the second accused. She said that Ilikimi and Pailato were with her on the night of August 5th. At about 11.10pm Ilikimi went out to use the toilet and after a while she saw him fighting with Tevita. She ran into the house and called Pailato to come out and stop them fighting. Pailato ran out to stop them and when he got there Tevita used his elbow on him. He elbowed him on the left chest and it caused Pailato to move backwards. Pailato punched Tevita's chest twice and then he left and went inside. When she left and Pailato had left she could hear the sound of a post falling.
48. Well that was the witnesses evidence and you might find it to be a bit "pat", a little too "coached " to be credible, especially after Karailina had said that Atelina hadn't seen what had occurred but then it is all a matter for you Ladies and Gentleman.
49. Well Ladies and Gentleman that was all of the evidence that I consider important. You may of course think otherwise. It is for you to ask yourselves what was the first accused's real intention when striking with the post? Was he really acting in self defence against a man who everybody says was fully drunk?
50. Has the second accused told you the truth about his actions that night?
51. I remind you that your possible opinions are:
For the first accused: Guilty of murder.
Not guilty of murder but guilty of manslaughter.
Not guilty of anything (if you find self defence).
For the second accused: Guilty of murder.
Guilty of manslaughter.
Not guilty of anything.
52. You will be asked to give your individual opinions when you have decided. It would be best if you could all be agreed on your opinions but if you can't agree I will accept individual different opinions.
53. You may take as much time as you wish and when you are ready you will let one of my Clerks know and I will reconvene the Court.
54. You may now retire but before you do I will ask Counsel if there is anything they wish me to change or add to my directions.
55. Counsel?
P.K. Madigan
Judge
At Suva
7 November 2014
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